majority">Watts, J. Com. App.

In order to avoid a multiplicity of suits involving the same questions, the original parties entered into the agreement, the effect of which was to waive the misjoinder of causes of action by the plaintiffs. The *307parties did not undertake by this agreement to give jurisdiction where it did not belong, or in any manner affect the jurisdiction of the court over the subject matter of the litigation. But the effect of the same was a waiver of right, in the matter of pleading, which the defendants could otherwise have taken advantage of, and forced the plaintiffs to their separate actions. And we are not able to perceive any valid reason why such an agreement is not valid and binding as between the parties. The objection sought to be cured thereby did not go to the foundation of the action, but only the manner in which the suit was brought. No fraud could have been intended upon the court; but it appears to have been simply an effort upon the part of the plaintiffs and defendants to waive the form that they might the more readily reach the substance of the litigation.

We conclude that the agreement was valid and binding as between the parties thereto. It seems to have been recognized, and acted on, by the parties for several years. Purchasers pending suit are not regarded with favor by the courts. Briscoe v. Bronaugh, 1 Tex., 326; Burford v. Rosenfield, 37 Tex., 42. Such a purchaser can only acquire such rights in the subject matter of the suit as was in his vendor. And when he becomes a party defendant by reason of such purchase, he can occupy no better or more advantageous position than did the original defendant. He buys the suit as it is, and simply takes the place of his vendor, and assumes the burdens that were resting upon him. In short, he is strictly in privity with his vendor, and can no more ignore his agreements with reference to the suit, and which are on file among the papers of the cause, than could the administrator ignore the agreements of his testator, made with reference to a pending suit.

We are of the opinion that said agreement is as bind*308ing upon the subsequent as the original defendants, and that neither would be allowed to dispute its binding force; and especially is this true where it had been acted upon, and recognized by the parties, until the statute of limitation would, if the objection was successfully made, bar the rights of the plaintiffs.

The other error complained of is not such as will likely occur upon another trial, and need not be considered.

It is our conclusion that a proper disposition of this appeal is to reverse the judgment and remand the case.

Reversed and remanded.

[Opinion delivered May 31, 1881.]

Ch. J. Moore did not sit in this case.

Citation profile

How this case has been treated — in progress